Sasser v. DeLorme , 56 Or. App. 630 ( 1982 )

RICHARDSON, P. J.

This case involves claims by plaintiff, a protected person, through her conservator against defendant, her former son-in-law.¹ Plaintiff sought an accounting and presented claims for money had and received and for conversion. After trial by jury on the two law claims and trial to an advisory jury on the equitable accounting claim, the jury found in favor of defendant generally, and the court entered judgments on the verdict. Plaintiff appeals the denial of her motions for directed verdict and the court’s adoption of the advisory jury verdict on the accounting claim.

Plaintiff is a 78-year-old widow. She has survived all her children. Before the events in controversy, plaintiff suffered a series of strokes. In June, 1974, she suffered a stroke which left her blind and paralyzed on her left side, and she was placed in a nursing home.

At the time plaintiff entered the nursing home, her daughter, defendant’s wife, was still alive. She assumed control of plaintiffs finances after the stroke. Defendant’s wife died on October 20, 1975. Thereafter, defendant took over the handling of plaintiffs affairs. Defendant was designated a cosignatory on plaintiffs bank cards and accounts and he was given a power of attorney on November 10, 1975. Plaintiff told defendant that if he made sure all her expenses and bills were taken care of, he could use the remainder of her money as he saw fit. Defendant used some of plaintiffs money for personal expenses, including tuition for his daughter, a loan to his brother, and the purchase of a lawn mower. He also continued paying plaintiff’s expenses, including nursing care, clothing and medical bills.

Plaintiffs grandson became concerned about the handling of her finances. On March 15, 1978, he was appointed her conservator and took over management of her affairs. He felt that some of defendant’s expenditures were suspicious. He instituted this suit, on plaintiffs behalf, to require defendant to account for all monies expended from November 10, 1975, until March 15, 1978. In separate law claims, plaintiff also sought damages for conversion of her funds and for money had and received. Defendant, as an affirmative defense to all three claims, alleged that any funds he spent for his own benefit were given him as a gift.

At trial, considerable testimony was given about plaintiffs physical condition throughout the relevant period, her history of gift giving, her relationship with defendant, whom she treated as a son, her understanding of her finances and of the terms and scope of the gift. Near the close of testimony, plaintiff moved for a directed verdict on the ground that “defendant has not carried its burden of proof on the issue of the gift.”² Plaintiff argued that there was no evidence that she understood the nature of the gifts and that, absent such understanding, no gift was shown. Plaintiff also argued that there was no evidence of delivery. Defendant countered that evidence of understanding was not necessary. The court denied the motion, stating that there was “all sorts of evidence in here that the jury can determine her ability to understand what she was doing or her inability.” The court also rejected plaintiffs contention that no delivery was established. The court noted that physical delivery was not necessary to effectuate a gift of this sort. There was evidence that defendant was given a power of attorney and was designated as a cosigner on plaintiffs bank account in order to allow him to withdraw funds as he saw fit. We find no error in the trial court’s ruling.

The jury found in favor of defendant on the conversion and money had and received claims. It sat as an advisory jury pursuant to ORCP 5 ID on the accounting claim and determined all claims against plaintiff and in favor of defendant. The court found the advisory verdict proper and adopted it as its own. Plaintiff argues that our scope of review of the equitable claim is de novo and that, on the basis of the evidence presented we should require defendant to return to the estate all the money used for his own benefit. In essence, plaintiff argues that we should find that she did not make a gift of these funds to defendant.

Plaintiff is correct in the abstract that in an equitable accounting claim tried to an advisory jury the trial court is free to disregard the finding of the jury and rule on its own. She is also correct in stating that we review equitable claims de novo and may arrive at a conclusion different than the trial court. However, because of the particular posture of this case we adopt a different approach. The central issue in all three claims for relief was whether the protected person had made a gift to defendant and the scope of any such gift. The jury, in rendering a verdict for defendant in the two law actions, necessarily found that there was a gift of the funds defendant used for his own purposes. The same jury, in its advisory verdict by answers to interrogatories, stated that there had been a gift. The right of defendant to use the funds was therefore determined in the two law actions. Equity cannot disregard the determination in the law action of the legal rights of the parties to funds involved in the accounting. A separate determination of the legal relationship in equity would be tantamount to a collateral review of the jury’s findings in the law action.

The purpose of an accounting is to strike a balance between the parties and determine if any funds are owed by either. A settlement of the account may require an order for one party to pay funds to the other. If, as in this case, the entitlement to the funds has been determined by a verdict in the law side of the case, there is nothing left to account for. The decree was appropriate.

Affirmed.

1 After the notice of appeal was filed, the protected person died. Her estate was substituted as plaintiff.

2 Plaintiff actually made two motions for directed verdict and assigns the denial of each as error. Plaintiff does not distinguish between the two on appeal and we treat them the same on review.